Evidence Flashcards

A proponent seeks to authenticate a phone call by testifying she called the number listed for the defendant's business and spoke with someone who answered questions about business dealings. This authentication is:

Answer: Sufficient, because a call to a listed business number about business transacted over the phone is self-corroborating under FRE 901

FRE 901(b)(6) allows authentication of outgoing calls to a listed business number where the conversation relates to business reasonably transacted over the phone.

A defendant offers to plead guilty during plea negotiations with the prosecutor, but negotiations collapse and he goes to trial. The prosecution offers his statements from the negotiations. These statements are:

Answer: Inadmissible under FRE 410, which excludes statements made during plea discussions that do not result in a guilty plea

FRE 410 bars withdrawn guilty pleas, nolo pleas, and statements made in plea discussions with the prosecuting attorney that did not result in a plea, though a defendant may waive this protection.

In a will contest, an attorney is asked to reveal confidential communications with her now-deceased client about the disputed will. The attorney-client privilege:

Answer: Survives death, but does not apply in disputes between parties claiming through the same deceased client

The privilege survives the client's death under Swidler & Berlin, but a well-recognized exception permits disclosure in litigation between claimants through the same deceased client, such as will contests.

A witness testifies for the plaintiff. On cross, she is confronted with a prior inconsistent statement she made in a sworn deposition. That prior statement is admissible:

Answer: Both to impeach and as substantive evidence, because it was given under penalty of perjury in a deposition

Under FRE 801(d)(1)(A), a testifying witness's prior inconsistent statement made under oath at a trial, hearing, or deposition is non-hearsay and admissible substantively as well as for impeachment.

A trial judge excludes relevant defense evidence in a criminal case. To preserve the error for appeal when the ruling excludes evidence, defense counsel must:

Answer: Make an offer of proof informing the court of the evidence's substance, unless it was apparent from context

Under FRE 103, a claim of error based on excluded evidence requires an offer of proof unless the substance was apparent from the context.

A landowner's ownership of a disputed strip is at issue. A party offers a 40-year-old recorded deed found in the county clerk's office, in a condition creating no suspicion of authenticity. The deed is:

Answer: Admissible under the ancient documents authentication rule and the hearsay exception for statements in ancient documents

A document at least 20 years old, in unsuspicious condition and found where expected, is self-authenticating in effect under FRE 901(b)(8), and FRE 803(16) provides a hearsay exception for authenticated documents prepared before 1998.

A defendant charged with burglary offers testimony from his pastor that the defendant has a reputation in the community for honesty. This character evidence is:

Answer: Admissible, because a criminal defendant may offer reputation evidence of a pertinent trait, and honesty is pertinent to burglary's intent to commit theft

Under FRE 404(a)(2)(A) and 405(a), an accused may open the door with reputation or opinion evidence of a pertinent character trait, and honesty is pertinent where theft is an element of the charged intent.